Peo v. Fleeks

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22CA2112 Peo v Fleeks 06-12-2025

COLORADO COURT OF APPEALS


Court of Appeals No. 22CA2112
Adams County District Court No. 16CR1046
Honorable Patrick H. Pugh, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

A’Jueal Fleeks,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division II
                         Opinion by JUDGE SCHUTZ
                         Fox and Harris, JJ., concur

                  NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
                          Announced June 12, 2025


Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1       Defendant, A’Jueal1 Fleeks, appeals the postconviction court’s

 order denying his Crim P. 35(c) motion. We affirm the order.

                   I.        Background and Procedural History

                        A.     Incident, Trial, and Conviction

¶2       To assist the reader in understanding the relationships

 between the individuals involved in this matter, we include the

 following table:

                   Name                            Relationship to Others

     Raymond Marquez                           Stormee Duran’s former
                                               boyfriend, and Bissell’s former
                                               roommate


     Stormee Duran                             Fleeks’s romantic interest at the
                                               time of the incident and
                                               potential alibi witness

                                               Marquez’s on-again-off again
                                               romantic partner and coparent
     Ian Bissell                               Marquez’s former roommate

                                               Fleeks’s burglary victim
     Leslie Blea                               Bissell’s romantic partner

                                               Fleeks’s burglary victim




 1 The appellate briefs stylize Fleeks’s first name as, “Ajueal,” but in

 his written correspondence, his name is stylized as, “A’Jueal,” so we
 defer to his written preference.

                                           1
¶3    Fleeks’s conviction is supported by the following evidence

 presented at trial:

¶4    On March 5, 2016, at around 2 a.m., Fleeks, armed with a

 handgun, showed up at Bissell’s and Blea’s residence looking for

 Bissell’s former roommate, Marquez. Neither Blea nor Bissell had

 met Fleeks before this incident. Bissell and Blea told Fleeks that

 Marquez no longer lived there, but Fleeks forced his way into the

 residence holding Bissell and Blea at gunpoint.

¶5    Fleeks proceeded to search the home. When he arrived at a

 bedroom, Blea told him not to enter because her child was the only

 person in there. Fleeks ignored her, opened the bedroom door and

 turned on the light, at which point Blea ran into the bedroom and

 laid on top of the child to protect him. Blea stared at Fleeks’s face

 in the light, while shielding her child.

¶6    Fleeks left the bedroom and argued with Bissell in the living

 room. Blea could still hear and observe what was happening. The

 argument escalated and Fleeks repeatedly punched Bissell in the

 head. Bissell offered to call Marquez to assuage Fleeks.

¶7    Bissell located Marquez’s phone number. Fleeks called

 Marquez and had a seven-to-ten-minute conversation in which he


                                     2
  referred to himself as “Dolla2” and stated, “I heard you’re going to

  my girl’s school . . . you keep fucking with my girl.” After the

  conversation, Fleeks left their home.

¶8     Police arrived on scene shortly thereafter. Blea provided the

  officers with a general description of Fleeks including that he wore a

  red hat with a white “W” on it.

¶9     Later that same day, Blea, Bissell, and Marquez had a

  conversation about the burglary, from which Blea learned that

  Fleeks’s “girl” was Duran. After the conversation, Blea reviewed

  Marquez’s social media contacts and located Duran’s social media

  account. While reviewing Duran’s account, Blea observed Fleeks

  wearing the same hat that he wore during the burglary. After

  reviewing Duran’s account, Blea contacted a detective and told him

  that she recognized Fleeks. Detectives then looked at the profile

  picture and matched it to the description that Blea had provided to

  law enforcement, as summarized in the initial police report.

¶ 10   Police soon arrested Fleeks, and Blea later identified Fleeks in

  a photo lineup. The prosecution charged Fleeks with eight counts,



  2 Some portions of the record spell the alleged nickname as “Dollar.”



                                     3
  including burglary, menacing, criminal trespass, possession of a

  weapon by a previous offender, third degree assault, and child

  abuse.

¶ 11   After Fleeks’s arrest, Duran approached trial counsel and told

  them that she could provide an alibi for Fleeks’s whereabouts on

  the night of the burglary. Trial counsel endorsed Duran as a

  witness, but did not call her to testify and did not request an alibi

  theory of the case instruction.

¶ 12   After a three-day trial, the jury convicted Fleeks on all counts

  except the child abuse charge. The trial court sentenced him to

  concurrent prison sentences with a controlling term of fifteen years.

                  B.   First Appeal and Rule 35(c) Hearing

¶ 13   Fleeks’s private appellate counsel directly appealed the

  convictions and in 2018, a division of this court affirmed, but

  remanded the matter to the trial court to correct the mittimus. See

  People v. Fleeks, (Colo. App. 17CA0241, Oct. 18, 2018) (not

  published pursuant to C.A.R. 35(e)) (Fleeks I). The mandate issued

  in December 2018. Appellate counsel took no subsequent actions

  in this case.




                                     4
¶ 14   In March 2020, Fleeks, acting pro se, moved for postconviction

  relief under Crim P. 35(c) alleging that trial counsel and appellate

  counsel were ineffective. In June, the postconviction court

  appointed Alternate Defense Counsel (ADC) to represent Fleeks

  after the public defender’s office conflicted off the matter. ADC

  supplemented Fleeks’s motion.

¶ 15   Fleeks claimed that his trial counsel was ineffective by (1)

  failing to give notice of and present an alibi defense; (2) making

  certain promises — and assuming a burden of proof the defense

  could not satisfy — during opening statements; (3) allowing a

  recording of a jail phone call to be admitted in which Fleeks refers

  to himself as “Dolla” rather than stipulating that he used the

  nickname; and (4) failing to ask for an alibi theory of the case

  instruction. Fleeks also claimed that, because of counsel’s failures,

  he did not knowingly or voluntarily waive his right to testify.

¶ 16   Fleeks claimed his appellate counsel was ineffective by failing

  to advise him of his right to seek sentence reconsideration under

  Crim. P. 35(b) upon the issuance of the mandate in Fleeks I. In

  April 2022, the postconviction court granted a hearing to determine

  whether trial counsel was ineffective for failing to preserve,


                                     5
  investigate, and present evidence of an alibi defense through

  Duran’s testimony (the alibi defense). The court summarily denied

  Fleeks’s other claims.

¶ 17   In September, the postconviction court held an evidentiary

  hearing at which it heard testimony from Duran. After considering

  the evidence presented, the court found that trial counsel acted

  below the applicable standard by failing to pursue the alibi defense.

¶ 18   However, the court also found that Fleeks’s ineffective

  assistance of counsel claim ultimately failed because he did not

  prove the result of the trial would have been different even if the

  alibi defense had been presented. Thus, the court rejected the

  claim because Fleeks failed to demonstrate that prejudice resulted

  from trial counsel’s deficient performance.

¶ 19   In support of its conclusion that Fleeks failed to demonstrate

  prejudice, the court noted that Duran’s testimony at the Rule 35(c)

  hearing had some timeline inconsistencies, including that they

  ordered pizza around 11 p.m. but did not go to bed until around 4

  a.m., which left a substantial gap of unaccounted for time.

  Additionally, Duran testified that Fleeks was hostile toward

  Marquez due to Marquez’s alleged abusive conduct toward Duran.


                                     6
  The court reasoned that if Duran had been called to testify, this

  evidence may have been used to both impeach her testimony and to

  suggest that Fleeks had a motive for the burglary.

¶ 20   The court found that even if the alibi defense had been

  introduced, there was sufficient evidence from which the jury could

  have still convicted Fleeks, including:

       •    Blea’s and Bissell’s trial testimony that Fleeks committed

            the offense;

       •    Blea’s general description of Fleeks’s physical

            characteristics immediately after the crime;

       •    Blea’s ability to identify Fleeks by the social media

            pictures in which he was wearing the same hat that was

            worn during the burglary;

       •    Blea’s ability to identify Fleeks in a subsequent photo

            lineup; and

       •    Blea’s knowledge of facts, such as referring to himself as

            Dolla, that she would not have known had the incident

            not occurred.

¶ 21   Based on these findings, the court found that Fleeks suffered

  no prejudice because there was still sufficient evidence for a

                                     7
  reasonable jury to conclude he was guilty of the subject offenses.

  The court therefore denied the claims predicated on the failure to

  present the alibi defense.

                          II.   Issues On Appeal

                           A.    Applicable Law

  1.   Standard of Review and Postconviction Relief Under Rule 35(c)

¶ 22   Summary denial of a Crim. P. 35 motion is “appropriate if the

  claims raise only an issue of law, or if the allegations, even if true,

  do not provide a basis for relief.” People v. McGlaughlin,
2018 COA

  114, ¶ 24
(quoting People v. Venzor,
121 P.3d 260, 262
(Colo. App.

  2005)). We review de novo a postconviction court’s denial of a Crim.

  P. 35(c) motion without a hearing. Id. at ¶ 25.

¶ 23   If a postconviction court enters an order addressing the merits

  of a Rule 35(c) claim after an evidentiary hearing, we review the

  findings for an abuse of discretion. People v. Huggins,
2019 COA

  116, ¶ 28
. A court abuses its discretion if its decision is manifestly

  arbitrary, unreasonable, or unfair, or is based on an erroneous

  understanding or application of the law.
Id.
¶ 24   A claim of ineffective assistance of counsel presents a mixed

  question of fact and law. People v. Sharp,
2019 COA 133, ¶ 12
. We


                                      8
  defer to the postconviction court’s factual findings if they have

  record support, but we review any legal conclusions — including

  the court’s determinations on Strickland’s performance and

  prejudice prongs — de novo.
Id.
¶ 25   We may affirm the denial of a postconviction motion for any

  reason supported by the record, even if the rationale was not

  expressly relied on by the postconviction court. See People v.

  Taylor,
2018 COA 175, ¶ 8
.

             2.   Sentence Reductions under Crim P. 35(b)

¶ 26   A defendant may seek a sentence reduction under Crim. P.

  35(b) within eighteen weeks from the entry of “any order or

  judgment of the appellate court denying review or having the effect

  of upholding a judgment of conviction or sentence.” Crim. P. 35(b).

  After considering the motion and any supporting documents, the

  court may summarily deny the motion or reduce the sentence. The

  decision whether to grant a Rule 35(b) motion is entrusted to the

  court’s sound discretion. People v. Dunlap,
36 P.3d 778, 780
(Colo.

  2001). In some circumstances, defense counsel’s failure to pursue

  a Rule 35(b) motion may constitute ineffective assistance. People v.

  Dunlap,
124 P.3d 780, 798
(Colo. App. 2004) (emphasis added).


                                     9
                  3.   Ineffective Assistance of Counsel

¶ 27   To prevail on an ineffective assistance of counsel claim, a

  defendant must prove counsel’s performance was deficient and that

  the deficient performance prejudiced the defendant. Strickland v.

  Washington,
466 U.S. 668, 687
(1984). To establish defense

  counsel’s deficient performance, a defendant must prove that

  counsel’s conduct fell outside the wide range of professionally

  competent representation.
Id. at 690
; People v. Sherman,
172 P.3d

  911, 913
(Colo. App. 2006). To establish prejudice, the defendant

  must show that “but for” counsel’s performance, the outcome would

  have been different. Strickland,
466 U.S. at 694
. A claim must be

  denied if a defendant fails to prove either deficient performance or

  prejudice. Id.; People v. Chipman,
2015 COA 142
, ¶ 32.

¶ 28   The Strickland test is the appropriate measure for ineffective

  assistance by appellate counsel. Silva v. People,
156 P.3d 1164,

  1169
(Colo. 2007). A claim of ineffective assistance of counsel may

  stem from a multitude of allegations, including — as relevant here

  — that trial counsel failed to present the case effectively by

  overlooking a meritorious defense that was more likely to succeed

  than the defense presented. People v. Trujillo,
169 P.3d 235
, 238


                                    10
  (Colo. App. 2007). However, counsel is not required to present

  every nonfrivolous issue a defendant desires to raise.
Id.
Indeed, a

  central role of appellate counsel is to focus on the issues that

  present the best chance of achieving success, rather than raising

  every potential error that arguably occurred.

                    B.    Analysis of the Alibi Defense

                           1.   Additional Facts

¶ 29   Shortly after Fleeks’s arrest, Duran approached trial counsel

  and told them that she could provide an alibi for Fleeks’s

  whereabouts because she was with him at the time of the burglary.

  She also provided trial counsel with screenshots of a receipt of the

  pizza that they purchased and a written statement in which she

  claimed that they were together on the night of the burglary. Trial

  counsel endorsed Duran as a witness but did not ultimately call her

  to testify or request an alibi instruction.

¶ 30   Trial counsel’s theory of defense was that Marquez and Bissell

  “concocted a story to get back at Duran” as revenge from a

  perceived wrong that Duran perpetrated against Marquez. Trial

  counsel told the jury that Marquez was angry with Duran because

  she had accused him of assaulting her, and that Marquez was also


                                     11
  angry with Fleeks because of his relationship with Duran. So,

  defense counsel argued, Marquez conspired with his former friend

  and former roommate, Bissell, to stage the burglary and assault.

  Counsel forecasted in opening statement that the evidence would

  demonstrate that Bissell’s and Blea’s accounts of the crime and

  their identification of Fleeks were simply not credible.

¶ 31   To support this contention, the defense presented evidence

  challenging the credibility of Bissell’s and Blea’s accounts of the

  story including timeline inconsistencies, discrepancies in how they

  initially recounted the burglary, and deficiencies in the police

  investigation.

¶ 32   In 2022, at the postconviction hearing, Duran stated that if

  she had been called as a trial witness she would have testified that

  (1) Marquez had previously threatened to ruin her life if she ended

  their romantic relationship; (2) the night of the alleged burglary was

  particularly memorable to her because that was when she and

  Fleeks consummated their romantic relationship and because the

  pizza delivery person repeatedly called her that night because he

  was lost; and (3) she and Fleeks were together until around 4 a.m.

  on the night of the burglary.


                                    12
                      2.   The Parties’ Contentions

¶ 33   Fleeks contends that he was prejudiced by the failure to call

  Duran because she would have supported his contention that the

  alleged crimes were staged and he could not have committed them

  because he was with her the entire evening.

¶ 34   The People argue that the failure to request an alibi theory of

  the case instruction was not prejudicial because the alibi theory

  was merely in service of the overarching theory that Fleeks was set

  up, which was adequately communicated to the jury. Moreover,

  they argue, the alibi defense could have undermined the presented

  defense because Duran’s testimony would have been effectively

  negated by inconsistencies in her timeline, her past conflicts with

  Marquez, and her desire to help Fleeks. Given these dynamics,

  coupled with the strength of Bissell’s and Blea’s testimony, the

  People argue that the result of the trial would not have been

  different even if Duran had testified.

                              3.    Analysis

¶ 35   In assessing the prejudice prong of the Strickland test, the

  postconviction court framed its analysis by asking whether the

  evidence admitted at trial was sufficient to convict Fleeks even if the


                                    13
  alibi defense had been presented. Neither the postconviction court

  nor the parties point us to case law applying a sufficiency of the

  evidence test in this context. Although the sufficiency of the

  evidence paradigm may be a useful starting point, we tether our

  analysis to the more traditional formulation of this inquiry —

  whether there is a “reasonable probability” that but for trial

  counsel’s deficient performance, the “result of the proceeding would

  have been different.” Davis v. People,
871 P.2d 769, 772
(Colo.

  1994) (quoting Strickland,
466 U.S. at 694
). A reasonable

  probability is “a probability sufficient to undermine confidence in

  the outcome.”
Id.
¶ 36   In finding no prejudice caused by the omission of the alibi

  evidence, the court pointed to the strength of the People’s evidence,

  including the swelling, bruising, and dried blood on Bissell’s face

  when police arrived on scene, Blea’s initial description that matched

  Fleeks, Blea’s subsequent identification of Fleeks in photos from

  Duran’s social media, and Blea’s testimony that she heard Fleeks

  refer to himself as Dolla and the subsequent phone recording in

  which Fleeks referred to himself by the same nickname.




                                    14
¶ 37   While acknowledging that Duran’s testimony may have

  provided some benefit to the defense’s theory of the case, the

  postconviction court also reasoned that Duran’s testimony had

  some problems, including that the pizza receipt was in Duran’s

  name only and was timestamped near 11 p.m., which would not

  have undermined Bissell’s and Blea’s account that the incident

  occurred around 2 a.m. Moreover, the jury may have concluded

  that the complicated relationship between Duran, Marquez, and

  Fleeks, including Duran’s back-and-forth romantic relationship

  with Marquez, provided her with a motive to fabricate the alibi

  testimony.

¶ 38   Given the strength of Bissell’s and Blea’s testimony, and the

  vulnerability of Duran’s alibi evidence, we cannot say that the

  postconviction court erred by concluding that the result of the trial

  would not have been different even if the alibi defense had been

  properly preserved and presented.

                  C.   Remaining Trial Counsel Claims

¶ 39   Fleeks also appeals the postconviction court’s summary

  denials of his claims that trial counsel was ineffective in three

  additional ways: first, by erroneously shifting the burden during


                                    15
  opening statements; second, by not preparing Fleeks to testify and

  rendering his ability to testify impracticable by presenting an

  inconsistent defense, thus effectively depriving him of the ability to

  make a knowing and voluntary waiver of his right to testify; and

  finally, by failing to stipulate to his nickname, which resulted in the

  prosecution playing a jail recording, in which he refers to himself as

  Dolla. We address each contention in turn.

¶ 40   As it relates to the burden of proof, the postconviction court

  summarily denied Fleeks’s claim that trial counsel shifted the

  burden of proof to the defense by saying during opening statements

  that it would produce evidence of a setup. The court found that

  assertions that the allegations were false, the witnesses were

  biased, and that the police department failed to investigate claims

  was not tantamount to shifting the burden of proof. We agree.

  Moreover, trial counsel delivered on its assertion that it would

  provide evidence that Bissell’s and Blea’s testimony was

  inconsistent and evolving. Thus, we discern no error in the court’s

  summary denial of this claim.

¶ 41   We also conclude that the court did not err by summarily

  denying Fleeks’s claim that trial counsel’s conduct deprived him of


                                    16
  the ability to make a knowing, voluntary, and intelligent waiver of

  his right to testify. The trial court fully advised Fleeks of his right

  to testify. And after the advisement, Fleeks confirmed that he was

  making a personal, knowing, and voluntary decision to waive his

  right to testify. Seconds later, trial counsel stated that they would

  present no additional evidence. Despite his appellate arguments,

  Fleeks did not protest the decision not to call Duran. Nor did he

  inform the court that the absence of Duran’s testimony impacted

  his waiver of the right to testify. Given these circumstances, the

  postconviction court did not err by summarily denying this claim.

¶ 42   Finally, we reject Fleeks’s contention that trial counsel was

  ineffective by failing to stipulate that Fleeks used the nickname

  Dolla. Trial counsel filed a pretrial motion to suppress the video of

  the phone call, which was denied. Counsel also obtained a

  stipulation from the prosecution that only a brief sound recording of

  the conversation would be admitted. Moreover, Fleeks offered no

  evidence to suggest that the prosecution would have accepted a

  stipulation without introducing some portion of the recording. See

  People v. Morales,
2012 COA 2, ¶ 9
(“The prosecution is generally

  entitled to prove the elements of its case against a defendant by


                                     17
  evidence of its own choice, and a defendant ‘may not stipulate or

  admit his way out of the full evidentiary force of the case as the

  [prosecution] chooses to present it.’”) (quoting Old Chief v. United

  States,
519 U.S. 172, 186-87
(1997)). Thus, we discern no

  deficiency in trial counsel’s performance on this issue. Moreover,

  as the postconviction court noted, the phone recording was very

  short and there was substantial evidence identifying Fleeks as the

  perpetrator. So, we cannot say that the postconviction court erred

  by summarily denying this claim.

            D.    Appellate Counsel’s Alleged Ineffectiveness

¶ 43   Finally, Fleeks contends that appellate counsel was ineffective

  because they failed to inform him of his right to move for a sentence

  reduction under Crim. P. 35(b). Under Rule 35(b), a defendant may

  seek a sentence reduction within eighteen weeks after the entry of

  “any order or judgment of the appellate court denying review or

  having the effect of upholding a judgment of conviction or

  sentence.” Crim. P. 35(b). Fleeks contends that appellate counsel’s

  failure to take any subsequent action after the Fleeks I mandate

  was issued was ineffective assistance.




                                    18
¶ 44   However, this claim also fails because Fleeks does not allege

  prejudice. Fleeks did not allege in his motion, and does not argue

  on appeal, that he had new or mitigating evidence to present in

  support of a request for a sentence reduction. Indeed, neither in

  his motion nor on appeal does Fleeks contend that, if the motion

  had been filed, there was a reasonable probability that it would

  have been granted and his sentence would have been reduced.

  Therefore, the postconviction court did not err by summarily

  denying this claim.

                            III.   Disposition

¶ 45   The postconviction court’s order is affirmed.

       JUDGE FOX and JUDGE HARRIS concur.




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